24:0435(46)AR - DOL and Local 12, AFGE -- 1986 FLRAdec AR



[ v24 p435 ]
24:0435(46)AR
The decision of the Authority follows:


 24 FLRA No. 46
 
 U.S. DEPARTMENT OF LABOR
 Agency
 
 and
 
 LOCAL 12, AMERICAN FEDERATION 
 OF GOVERNMENT EMPLOYEES
 Union
 
                                            Case No. 0-AR-1119
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Edith Barnett filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievance in this case concerns the failure of the four grievants
 to be promoted.  The grievants are GS-9 disclosure reports specialists
 in a career-ladder with a full performance level of GS-11.  After the
 grievants had met the time-in-grade requirements for promotion and, in
 the judgment of their supervisor, had demonstrated the ability to
 perform at the GS-11 level, but had not been promoted, they met with
 their supervisor who told them that the "climate was not right" for
 their promotions.  Subsequently, the grievants had a meeting with the
 division chief who, according to the Arbitrator, also told them that
 under "the present administration" the "climate was not right" for their
 promotions.  Not satisfied, the grievants filed the grievance
 challenging their failure to be promoted.  At arbitration the Arbitrator
 framed the issues as whether the grievance was arbitrable and whether
 the Agency violated the collective bargaining agreement by failing to
 promote the grievants.
 
    On the issue of arbitrability, the Arbitrator ruled that the
 grievance was arbitrable.  Contrary to the contention of the Agency, she
 determined that the grievance only concerned whether the Agency properly
 refused to promote the grievants and did not concern the classification
 of any position.
 
    On the merits issue, the Arbitrator ruled that the Agency's failure
 and refusal to promote the grievants on their eligibility date was
 arbitrary and capricious and in violation of Article 21, Sections 3c and
 3d of the collective bargaining agreement.  The Arbitrator further ruled
 that but for the arbitrary and capricious actions of the grievants'
 supervisors, which were in violation of the collective bargaining
 agreement, the grievants would have been promoted to GS-11 on July 24,
 1983.  Accordingly, the Arbitrator ordered the grievants promoted to
 GS-11 retroactive to July 24, 1983, with backpay.
 
    In her opinion accompanying the award, the Arbitrator discussed her
 reasoning in concluding that the failure and refusal to promote the
 grievants was arbitrary and capricious.  Primarily, the Arbitrator
 rejected the Agency's position that the grievants were not promoted
 because sufficient work at the GS-11 level was not available.  Instead,
 she found that in not promoting the grievants, their supervisors were
 motivated by "subjective and unsupported fears about the general
 'climate' for promotions." In addition, she separately and independently
 found that even if the grievants' supervisors were motivated by a
 good-faith belief that sufficient work was not available, their failure
 to promote the grievants was still arbitrary.  She concluded that the
 proper procedure in such circumstances is not to deny individual
 promotions but to challenge the career ladder itself.
 
                           III.  FIRST EXCEPTION
 
    A.  Contentions
 
    The Agency contends that the award is deficient by finding the
 grievance to be arbitrable.  The Agency maintains that the grievance
 concerns the classification of a position within the meaning of the
 exclusion of section 7121(c)(5) of the Statute and a corresponding
 exclusion of the collective bargaining agreement.
 
    B.  Analysis and conclusions
 
    The Agency fails to establish that the award is contrary to section
 7121(c)(5) and the collective bargaining agreement.  We have
 specifically held that a grievance and an award which pertain to whether
 a grievant is entitled to a career-ladder promotion do not concern the
 classification of any position within the meaning of section 7121(c)(5).
  American Federation of Government Employees, Local 3258 and U.S.
 Department of Housing and Urban Development, 21 FLRA No. 56 (1986).  In
 this case, we similarly find contrary to the contention of the Agency
 that the grievance and award pertain to whether the Agency properly
 refused to promote the grievants and do not directly concern the
 classification of any positions.
 
                           IV.  SECOND EXCEPTION
 
    A.  Contentions
 
    The Agency contends that the award is contrary to the Back Pay Act, 5
 U.S.C. Section 5596.  Specifically, the Agency argues that the
 Arbitrator failed to make all the findings necessary to an award of
 backpay and that some of her findings are not supportable.
 
    B.  Analysis and conclusions
 
    The Agency fails to establish that the award of a retroactive
 promotion and backpay is contrary to the Back Pay Act.  With respect to
 awards of backpay, the Authority has specifically stated that in order
 for an award of backpay to be authorized under the Back Pay Act, the
 arbitrator must find that an agency personnel action with respect to the
 grievant was unjustified or unwarranted;  that such unjustified or
 unwarranted personnel action directly resulted in the withdrawal or
 reduction of the grievant's pay, allowances, or differentials;  and that
 but for such action, the grievant otherwise would not have suffered such
 withdrawal or reduction of pay, allowances, or differentials.  For
 example, U.S. Army Aberdeen Proving Ground and Local 2424, International
 Association of Machinists and Aerospace Workers, AFL-CIO, 19 FLRA No. 35
 (1985).  We find contrary to the contention of the Agency that the
 Arbitrator made all the findings necessary to her award of a retroactive
 promotion and backpay.  She specifically found that by failing to
 promote the grievants on their eligibility date, the Agency violated
 Article 21 of the collective bargaining agreement and that but for this
 violation, the grievants would have been promoted to GS-11 on July 24,
 1983.  Furthermore, the Agency's contention that these findings are not
 supportable constitutes nothing more than disagreement with the
 Arbitrator's interpretation and application of the collective bargaining
 agreement and with her findings of fact and her reasoning and
 conclusions.  Such disagreement provides no basis for finding the award
 deficient.  For example, U.S. Department of Health and Human Services,
 Social Security Administration and American Federation of Government
 Employees, AFL-CIO, 22 FLRA No. 16 (1986).  Consequently, no basis is
 provided for finding the award contrary to the Back Pay Act.
 
                            V.  THIRD EXCEPTION
 
    A.  Contentions
 
    The Agency contends that the award is either contrary to the
 Classification Act, 5 U.S.C. Section 5101 et seq., and classification
 regulations, FPM chapter 511, or is contrary to section 7106(a) of the
 Statute.  The Agency explains that the Classification Act and the FPM
 require as part of any promotion recommendation a certification from the
 supervisor that the position description of the position to which the
 recommended employee is to be promoted accurately reflects the duties
 that will be assigned the employee.  In this case, the Agency maintains
 that the required certification cannot be made because there is no work
 at the GS-11 level to be performed.  The Agency asserts that the
 certification can only be made if management creates enough GS-11 work
 for the grievants to perform.  Thus, the Agency aruges that by ordering
 the grievants promoted, the award must violate the Classification Act
 and FPM chapter 511 or management's rights under section 7106(a).  The
 Agency asserts that as ordered, the award violates the Act and the FPM
 because it would require the grievant's supervisor to falsify the
 certification that the position description of the GS-11 position
 accurately reflects the duties to be performed by the grievants.  The
 Agency asserts alternatively that to create GS-11 duties to implement
 the award consistent with the Act and the FPM would violate numerous
 management rights under section 7106(a).  Accordingly, the Agency
 concludes that the award must be found deficient as contrary to law.
 
    B.  Analysis and conclusions
 
    The Agency fails to establish that the award is contrary to law or
 regulation.  The Agency's exception that the award must be found
 contrary to classification law and regulation or section 7106(a) is
 necessarily founded on the premise that there was a lack of work at the
 GS-11 level.  The Arbitrator specifically addressed in her award the
 issue of a lack of work at the GS-11 level, but she made separate and
 alternative findings.  On the one hand, she found that even if the
 grievants' supervisors had a good-faith belief as to the lack of work,
 their failure to promote the grievant was still arbitrary.  We conclude
 that any reliance on this finding as permitting the Agency to argue
 before the Authority that there was in fact a lack of work at the GS-11
 level is misplaced.  This finding by the Arbitrator constituted a
 separate and independent basis for her conclusion that the failure to
 promote the grievants was arbitrary which assumed a good-faith belief by
 the grievants' supervisors of a lack of work.  But on the other hand and
 primarily, the Arbitrator separately found that there was not any lack
 of work at the GS-11 level and that the supervisors were instead
 motivated by subjective and unsupported fears about the climate for
 promotions.  Thus, we find that this exception, which is based on the
 premise that there was a lack of work at the GS-11 level, constitutes
 disagreement with the Arbitrator's findings of fact and her reasoning
 and conclusions which, as we recognized earlier, provides no basis for
 finding the award deficient.
 
                           VI.  FOURTH EXCEPTION
 
    A.  Contentions
 
    The Agency contends that the award does not draw its essence from the
 collective bargaining agreement.  Specifically, the Agency argues that
 the award is deficient because the Arbitrator erroneously interpreted
 the parties' collective bargaining agreement to find that a
 career-ladder promotion is a ministerial act under the agreement and
 that the availability of work at the next higher-grade level is not a
 requirement under the agreement for a career-ladder promotion.
 
    B.  Analysis and conclusions
 
    The Agency fails to establish that the award does not draw its
 essence from the collective bargaining agreement.  The exception clearly
 constitutes nothing more than disagreement with the Arbitrator's
 interpretation and application of the parties' collective bargaining
 agreement and her reasoning and conclusions in reaching her award.  As
 we have repeatedly held, such disagreement provides no basis for finding
 an award deficient.
 
                           VII.  FIFTH EXCEPTION
 
    A.  Contentions
 
    The Agency contends that the award is based on a nonfact.
 Specifically, the Agency argues that the Arbitrator's findings are
 premised on a false assumption.  The Agency maintains that the
 Arbitrator's finding that the grievants' supervisors promoted other GS-9
 employees in the career ladder both shortly before and after the
 grievants became eligible for promotion is erroneous and that therefore
 the award is deficient.
 
    B.  Analysis and conclusions
 
    The Agency fails to establish that the award is deficient under the
 Statute.  We will find an award deficient under the Statute when it is
 demonstrated that the central fact underlying the award is concededly
 erroneous and in effect is a gross mistake of fact but for which a
 different result would have been reached.  For example, U.S. Army
 Missile Command, Redstone Arsenal, Alabama and Local 1858, American
 Federation of Government Employees, AFL-CIO, 18 FLRA No. 50 (1985).  In
 order for an award to be found deficient on this ground, it must be
 established that the alleged "nonfact" involved a fact that was
 objectively ascertainable, was the central fact that was objectively
 ascertainable, was the central fact underlying the award, and was
 concededly erroneous and that but for the arbitrator's misapprehension,
 the arbitrator would have reached a different result.  For example,
 International Brotherhood of Electrical Workers and United States Army
 Support Command, Hawaii, 14 FLRA 680 (1984).  Without fully addressing
 the statements of the Arbitrator cited by the Agency in terms of this
 ground, it is apparent that the Arbitrator based her conclusion that the
 grievants' supervisors acted arbitrarily on findings more extensive than
 the finding cited by the Agency.  Primarily, she found that the
 supervisors were motivated by fears about the general climate for
 promotions and that such fears were subjective and unsupported.  Thus,
 it is not established, even if the cited statement of the Arbitrator
 were concededly erroneous, that this "is the fact on which the award is
 based" and that "but for the arbitrator's misapprehension, the
 arbitrator would have reached a different result." See Army Support
 Command, Hawaii, 14 FLRA at 681 (quoting with original emphasis United
 States Army Missile Materiel Readiness Command (USAMIRCOM) and American
 Federation of Government Employees, Local 1858, AFL-CIO, 2 FLRA 432, 438
 (1980) ).  Accordingly, no basis is provided for finding the award
 deficient.
 
                              VIII.  DECISION
 
    For these reasons the Agency's exceptions are denied.
 
    Issued, Washington, D.C., December 15, 1986.